Barsky v. Board of Regents, 347 U.S. 442 (1954)

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs, dissenting.

MR. JUSTICE Holmes, while a member of the Supreme Judicial Court of Massachusetts, coined a dictum that has pernicious implications. "The petitioner may have a constitutional right to talk politics," he said, "but he has no constitutional right to be a policeman." See McAuliffe v. City of New Bedford, 155 Mass. 216, 220, 29 N.E. 517. By the same reasoning, a man has no constitutional right to teach, to work in a filling station, to be a grocery clerk, to mine coal, to tend a furnace, or to be on the assembly line. By that reasoning, a man has no constitutional right to work.

The right to work, I had assumed, was the most precious liberty that man possesses. Man has indeed as much right to work as he has to live, to be free, to own property. The American ideal was stated by Emerson in his essay on Politics, "A man has a right to be employed, to be trusted, to be loved, to be reversed." It does many men little good to stay alive and free and propertied if they cannot work. To work means to eat. It also means to live. For many, it would be better to work in jail than to sit idle on the curb. The great values of freedom are in the opportunities afforded man to press to new horizons, to pit his strength against the forces of nature, to match skills with his fellow man.

The dictum of Holmes gives a distortion to the Bill of Rights. It is not an instrument of dispensation, but one of deterrents. Certainly a man has no affirmative right to any particular job or skill or occupation. The Bill of Rights does not say who shall be doctors or lawyers or policemen. But it does say that certain rights are protected, that certain things shall not be done. And so the question here is not what government must give, but rather what it may not take away.

The Bill of Rights prevents a person from being denied employment as a teacher who, though a member of a "subversive" organization, is wholly innocent of any unlawful purpose or activity. Wieman v. Updegraff, 344 U.S. 183. It prevents a teacher from being put in a lower salary scale than white teachers solely because he is a Negro. Alston v. School Board, 112 F.2d 992. Those cases illustrate the real significance of our Bill of Rights.{1}

So far as we can tell on the present record, Dr. Barsky’s license to practice medicine has been suspended not because he was a criminal, not because he was a Communist, not because he was a "subversive," but because he had certain unpopular ideas and belonged to and was an officer of the Joint Anti-Fascist Refugee Committee, which was included in the Attorney General’s "list." If, for the same reason, New York had attempted to put Dr. Barsky to death or to put him in jail or to take his property, there would be a flagrant violation of due process. I do not understand the reasoning which holds that the State may not do these things, but may nevertheless suspend Dr. Barsky’s power to practice his profession. I repeat, it does a man little good to stay alive and free and propertied, if he cannot work.

The distinction between the State’s power to license doctors and to license street vendors is one of degree. The fact that a doctor needs a good knowledge of biology is no excuse for suspending his license because he has little or no knowledge of constitutional law. In this case, it is admitted that Dr. Barsky’s "crime" consisted of no more than a justifiable mistake concerning his constitutional rights.{2} Such conduct is no constitutional ground for taking away a man’s right to work. The error is compounded where, as here, the suspension of the right to practice has been based on Dr. Barsky’s unpopular beliefs and associations. As Judge Fuld, dissenting in the New York Court of Appeals, makes clear, this record is

barren of evidence reflecting upon appellant as a man or a citizen, much less upon his professional capacity or his past or anticipated conduct towards his patients.

305 N.Y. 89, 111 N.E.2d 228.

Neither the security of the State nor the wellbeing of her citizens justifies this infringement of fundamental rights. S o far as I know, nothing in a man’s political beliefs disables him from setting broken bones or removing ruptured appendixes safely and efficiently. A practicing surgeon is unlikely to uncover many state secrets in the course of his professional activities. When a doctor cannot save lives in America because he is opposed to Franco in Spain, it is time to call a halt and look critically at the neurosis that has possessed us.